Tattoos and Social Media = Age Discrimination?

By Alexander Castelli - Shawe Rosenthal LLP

December 20, 2018

When a company relaxes its workplace policies to allow employees to openly display tattoos and use social media at work, does that mean it’s discriminating against older people? That question presumes that only younger people have tattoos and use social media (which is itself discriminatory!). But, in Wyss v. PetSmart, Inc., a 60-year old employee attempted to use her employer’s social media policy and permission to display tattoos and piercings as evidence of age discrimination!

In September 2014, store management counseled the employee after she had been caught speaking negatively about a coworker. The employee didn’t deny making the comments, and instead complained that the store was hiring “young kids” and was phasing out “old people,” and disagreed with “the direction of the company in wanting team members with tattoos and [gauges] in their ears.”  Management reminded her of its “Dignity in the Workplace” policy’s prohibition against discrimination, including that based on age and appearance.

The employee apparently didn’t listen. A month later, she was again counseled after making negative comments about the same coworker, and she admitted that she didn’t want to work with him. She also, of course, took this time to complain about management’s acceptance of employees “displaying tattoos and piercings, and unprofessional behavior, including gossiping and cliques.”  She then exhibited some unprofessional behavior herself by demanding that management either get rid of her coworker or not schedule him with her.

A few weeks later, the employee complained about employees being allowed to use social media while at work.  Although she was told that the store wanted employees to use social media to be proud of their work, she said it was “nonsense,” and the store “wanted all young people working there.”  Management reiterated to her that speaking about employees’ ages and calling staff “young kids” was not appropriate.

Ultimately, management terminated the employee after concluding that she had no desire to treat her coworkers with respect. She turned around and sued for age discrimination. Since she had no evidence of ageist statements by management, the employee contended that other evidence demonstrated the store’s bias toward younger workers: specifically, that younger employees “were granted accommodations” that were meant to appeal to younger, rather than older, employees, because previously-prohibited practices (openly displaying tattoos, piercings, and unnatural hair color) were now permitted.  She explained that these practices were more common and “stereotypical” of people younger than thirty rather than people in their forties and older.  She also argued that the one “accommodation” she requested, to not be scheduled with the coworker, was denied. (By the way, I just want to remind you that, under the Age Discrimination in Employment Act, accommodations are not required for age).

The court found that the store didn’t require the employee to start displaying tattoos, piercings, or any other practice that could be considered “stereotypical” of younger people to keep her job.  The store just allowed others do so, regardless of their age.  Notably, her requested “accommodation” went directly to the reason she was terminated – her unwillingness to treat others with respect. Regardless of whether they are sporting tattoos or piercings.